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THE LAW OF THE LAND I 



MINISTER PHELPS' ADDRESS 



AT EDINBURGH, NOVEMBER 12, 1886. 



FOUNDATIONS OF CIVIL LIBERTY AND FEEE GOVEENMENT- 

THE LAW THAT CHANGES AND THE LAW THAT DOES NOT 

CHANGE— ENGLISH AND AMERICAN INSTITUTIONS 

—SOCIALISM AND CLASS LEGISLATION. 



HENRY BESSEY, PRINTER, 
No. 47 Cedar Street. 

1886. 



THE LAW OF THE LAND ; 



'toU^.jtx'i^-y'^i'w'' / 



ej A"nT^I>I7Q^l 



llllLrD AULfllJl^^O 



AT EDINBURGH, NOVEMBER 12, 1886. 



FOUNDATIONS OF CIVIL LIBERTY AND FREE GOVERNMENT— 

THE LAW THAT CHANGES AND THE LAVv^ THAT DOES NOT 

CHANGE— ENGLISH AND AMERICAN INSTITUTIONS 

—SOCIALISM AND CLASS LEGISLATION. 



HENRY BESSEY, PRINTER, 
No. 47 Cedar Stkeet. 

1886. 



^% 



l^\s 




The Law of the Land. 



In the Magna Charta of King John appears a phrase, 
the most significant expression in its most celebrated 
clause, famiHar now, unknown till then, per legem ierrce 
— " by the law of the land." It indicates there at once 
the criterion and the bulwark of the liberties of English- 
men. And with its context introduces for the first time 
into the theory of civil government, and crystallizes into 
language not destined to perish, the idea long moulding 
and shaping in the unlettered Saxon mind, that human 
rights are the foundation and not the concession of 
human authority. Whose phrase it was, we do not 
know. It was inscribed there by a forgotten hand. It 
has not been rare in the growth of the English tongue 
that some new form of words, struck as this was out of 
the heat of critical time, and compressing as this does a 
great thought into small compass, has entered for once 
and for always into the general speech of men. But it 
is the meaning rather than the origin of the words I have 
quoted from the Great Charter that I desire to consider. 
They are repeated oftener than they are understood. 
It may be useful, possibly, in this day of many novel- 
ties, to recur to their original significance, and to trace 
their relation to the political fabric which is the common 
inheritance of all our race. I ask your attention, there- 
fore, to some observations, of necessity very general 
and very brief, upon " The Law of the Land." 

The term is often made use of in a vague way, as in- 
cluding all the law which has force or is administered 
in the country. I do not so understand it. I regard 



and shall emjDloy it as embracing only tlie fundamental 
or constitutional law. I conceive the law of the land to be 
the law that runs with the land and descends with the 
land. Not the general mass of fluctuating law, derived 
from changeful legislation, or judicial decision " per- 
plexed in the extreme ; " but that higher law under which 
legislation itself obtains its authority and courts their 
jurisdiction. It was iu this sense, beyond doubt, that the 
words were employed in Magna Charta. Otherwise the 
guarantee of personal liberty there contained would alto- 
gether lose its force. It would no longer stand declared 
that the liberty of the subject shall be inviolable by gov- 
ernment ; but only that it shall And its measure and its 
superior in whatever may have the form or force of law 
for the time being. And the charter would merely have 
served to re-enact the old system of arbitrary power, 
which it was desired to put an end to. In the written 
Constitution of the United States this distinction is 
clearly brought out. The fundamental, personal and 
political rights, which may not be infringed, are enumer- 
ated and set forth, and are placed beyond the reach of 
any department of the government. The domain of 
constitutional law is thus completely separated from 
that of statute law. The unwritten Constitution of 
Great Britain, as universally understood, is of the same 
effect. Though its ultimate construction is entrusted 
to Parliament, that body is equally bound to refrain in 
legislation from infringement of the rights which it pro- 
tects. It has never in recent times disregarded the 
limit thus imposed upon its action. It is to be remem- 
bered, therefore, as the starting point necessary to a 
clear comprehension of the law under which we live, 
that it consists of two great comjDonent parts, differing 
widely in their character, the one raised ux^on the other ; 
the law that changes and the law that does not change. 
The law that is unchangeable is that which i^rotects the 
necessary and superior rights of man. 



THE LAW THAT DOES NOT CHANGE. 

The tlieory upon whicli our system of government 
rests is that maukind possesses certain natural rights, 
usually described as those of life, liberty and property 
indispensable to human freedom and happiness ; that 
these rights are not derived from, but are antecedent to 
government, which is instituted for their maintenance as 
its first and and principal object ; that it can never be 
allowed, therefore, to infringe or disregard them, nor to 
fail to oifer redress for their invasion, and that when 
it ceases to resjpect and uphold them, the obligation of 
allegiance terminates, and the right of revolution be- 
gins. These constitutional principles are of perpetual 
duration and of perpetual authority, because the na- 
tural rights they maintain are of perpetual obligation. 
No change of time or circumstance, no new discovery 
in political science, no modification of the forms of 
government, can affect their validity, or restrict their 
control. The principles of law which I have thus en- 
deavored to state belong exclusively to the Anglo-Saxon 
race. In no other system that ever existed are they to 
be found. They are the distinctive characteristic of 
the common law of England, which is likewise the 
common law of the English speaking race everyv^here. 
They were the offspring of no man's creation, the 
product of no man's brain. Through centuries of vig- 
orous Saxon life, through much oppression and violence, 
through the rise and fall of kingdoms, and wars and 
tumults innumerable, the great idea that underlies free 
government slowly ripened into perfection. It found 
its first definite and X3ermanent expression in Magna 
Charta, and became there the foundation of English 
law, to distinguish it thenceforth from all other law, and 
to conduct the people to whom it belonged and their 
descendants to a prosperity which the world had not 
seen before. I do not mean to say that under no other 



6 

system of government are the personal rights main- 
tained. They may be "upheld to a greater or less ex- 
tent, and possibly to the full extent under no others. 
A wise and humane despot might ijromulgate a code of 
laws which should afford as complete a security to these 
rights, while it lasted, as the law of England does. 
But under no other theory than ours can they be as- 
sured of a complete or permanent protection. In gov- 
ernments based upon different principles, personal 
rights so far as they exist are derived from the govern- 
ing power, and may, therefore, at any time be abridged 
or taken away by it. Human experience has shown 
that rights which are thus conferred are sooner or later 
lost. It is only when they are conceded to be inviolable, 
and when the observance of them by government be- 
comes the condition of its existence, that they ever can 
be permanently safe. There is still another branch of 
the constitutional law wiiicli is practically unchangeable 
in its character. To the X->i'otection of the cardinal 
rights it has been found that certain political institu- 
tions and certain judicial principles and processes are 
necessary. The division of government into three inde- 
pendent branches, the executive, the legislative and the 
judicial ; representation in Parliament ; the mainte- 
nance of courts of equal justice, the writ of liabeas 
corpus^ the trial by jury — these and other jDrincipal 
features in the administration of civil authority are not 
of themselves essential to human enjoyment. They are 
only so many devices shown by experience, as w^ell as 
by reason, to be indispensable to the just jprotection of 
the rights that are essential. The fundamental law 
divides, therefore, into two branches, the principles 
that define human rights and the machinery established 
for their security, 

THE LAW THAT CHANGES. 

Upon this foundation of constitutional principles is 
reared that other portion of the general structure of 



tlie common law wliich I have referred to as the law 
that is subject to change. It is deduced from these 
principles, by their gradual ax^plication to the multi- 
form and various relations of the individual to his fel- 
lows, and to the community. As civilization becomes 
more exigent, society more artificial, industry and 
business more various and complicated, and property 
more intricate in its forms and titles, the simple princi- 
ples in which law has its origin require to be developed 
and extended. New relations spring up, new regula- 
tions become necessary, fresh remedies have to be 
sought for. To meet these requirements the law con- 
stantly advances and is perfectly adequate. All law that 
is worth anything comes by growth, not by arbitrary 
creation. It arises out of an increasing and ever vary- 
ing necessity. Its movement is constant, sometimes in 
the wrong direction, it is true, but in the long run gen- 
erally in the right direction. When law ceases to grow 
society ceases to advance. 

The province of the general body of the law, in its vast 
elaboration of detail, is only to increase the security, to 
diminish the interruptions, to improve and extend the 
enjoyment of fundamental and indispensable rights. 
When this is accomplished, the power and province of 
civil authority are exhausted. Human law can do no 
more for man. All that remains, to make life happy and 
prosiDerous, must come, under Providence, from personal 
conduct and exertion, for which the field is thus opened 
and protected. I have been thus elementary, and, I fear, 
at the same time wearisome, in order to point out as 
clearly as I can just what it is that the law of the land 
secures, and to emphasize the distinction between con- 
stitutional rights and merely legal rights ; the first 
underlying government, and not to be infringed by its 
power ; the latter derived from government, held sub- 
ject at all times to its actioij, and liable to be modified or 
withdrawn. The line which divides these two classes of 



8 

rights is the one which defines and limits the po^yer of 
the majority. In respect to merely legal rights, that 
power is ultimately supreme. 

CIVIL LIBERTY AND FREE GOVERNMENT. 

What, then, is civil liberty, and what is free govern- 
ment ? We know that we enjoy them ; we boast of 
them ; we value them. But, after all, what do they 
exactly consist in ? Civil liberty is simply the enjoy- 
ment of the fundamental rights in their full extent. 
And free government is the government appropriate in 
form that secures their permanent protection to all men 
alike ; not by a security dependent upon the will of the 
governing power, but by one inherent in the government 
itself, and co-extensive with its existence. It is a very 
common mistake to suppose that the freedom of govern- 
ment consists in its form, and not in its substance ; in 
the means that should maintain freedom, rather than in 
the freedom itself. Forms of government, of whatever 
sort, are only forms. The true test is not in the nature 
of the machinery, but in the result that comes of it at 
last. The machinery, in and of itself, is only a perpetual 
burden. We should gladly dispense with it. It is but 
a means, not an end. That a form of government in 
which the ultimate jDower is in the people is necessary to 
the maintenance of freedom, is true. That such govern- 
ments are necessarily free, is not true. They have been 
usually free, because they have not been perverted from 
their purj)ose ; not because it is imxDOSsible that they 
should be. The opx>osite to free government is arbitrary 
power. That might be administered by a despot or by 
a class. Of a despotism, there is, at this day and in our 
race, no danger. Of attempts of establishing class 
government, there is danger. When, in any form of 
popular government, equal protection of the fundamental 
rights, or of any of them, ceases, that government, though 
its form remains, is no longer free, and becomes an 



9 

arbitrary authority, unjustly exercised by one class over 
another. By what means this comes to pass is immaterial. 
Arbitrary power may exist in a multitude as well as in 
an emperor, in a democracy as well as in an oligarchy. 
It may be the government of the few, or the government 
of the many. It is not the less class government, because 
the class that governs is the lowest class ; nor is there 
any advantage in government by the lov/est class over 
government by the highest, if there is to be class gov- 
ernment at all. No class government can be free, because 
the essence and indispensable condition of free govern- 
ment is equality of rights in all cases. And the object 
and necessary result of class government is, to attack 
the just rights of one class for the benefit of another. 
When a popular form of government thus ceases to be 
free, and becomes a class government, in which funda- 
mental rights are not equally protected, it extinguishes 
itself. Anarchy soon foUovv^s ; and a nevf system of 
arbitrary power arises out of the ruins, dictated by the 
necessities of society. Free government, or civil liberty, 
then, is, in the end, simply the maintenance, by its people, 
of those fundamental, and therefore constitutional rights 
that are declared by the law of the land. And, to the 
existence of those rights, two conditions are essential : 
First, that they should be inviolable ; second, that they 
should be equal. If not inviolable, they are not rights, 
but only enjojanents on sufferance ; if not equal, they 
are only the iDrivileges of a class, whatever that class 
may be. 

IlSrVASION OF NATURAL EIGHTS. 

Of the three great divisions of natural rights to which 
I have referred, the first two are not in these days 
challenged. It has not been proposed in our time to 
place either life or liberty at the disposal of any other 
power than that of the regular administration of justice. 
No reformers have recently appeared who desire to 



10 

improve society by taking tlie lives even of those guilty 
of the offence which history shows to be the least 
pardonable by mankind, that of differing from the 
majority in opinion. Thus far, at least, the law of the 
land stands unquestioned. But in various parts of the 
world, at the present time, in many forms, under many 
theories, and upon widely differing j^ropositions, the 
right of projDerty has been brought into question, has 
given rise to violent discussion, and has become some- 
times the subject of serious disturbance. In some 
quarters, it takes the form of active opposition to all 
X)rivate x^i'opei"ty and to all government. Such propo- 
sitions are only appropriately met by the bullet and the 
rope. In other directions, we hear much of a recently 
discovered nnd much elaborated antagonism between 
labor and what is called capital ; as if it were i)ossible 
that elements should be antagonistic which are essential 
to each other's existence. It seems strange, since labor 
has been the condition of human life ever since the 
creation, that the science necessary to the adjustment of 
its relations should have been born so late. It is to be 
regretted, now that it has come, that its propositions are 
not more easily understood. Elsewhere, the inequality 
in the distribution of property is the subject of debate ; 
the condition of the rich and of the ipoor is vividly 
contrasted, and many theories of legislation to counteract 
and equalize it are brought forward. As civilization has 
advanced, and the lield of human exertion has grown 
wider ; as the means for the creation of wealth have 
increased, and the ability of mankind has been more and 
more turned to its acquisition, inequalities in its pos- 
session and in its display have become more numerous 
and conspicuous, and the line between the rich and the 
poor has been more sharply drawn, that was plain 
enough before. That this disparity should be removed 
by legislation, that it should become the office of the law 
to secure in some way a more equal distribution, and to 



11 

enricli poverty by diminishing wealtli ; that the laborer 
should some how come to receive more than his hire, 
and that the unfortunate, the idle and the prodigal 
should share the prosperity they have not created, are 
specious propositions, eagerly listened to by those whom 
they promise to benefit. They afford very facile material 
to philosophers who are more gifted in speech than in 
clear understanding, and to demagogues who wish to 
excite the multitude, rather then to instruct them. One 
among many of the favorite methods by v/hich reformers 
of this sort i^uriDose to equalize property is, to bring to 
bear upon those whom prosperity has rendered obnoxious 
the power of excessive and unequal taxation, and, under 
the cover of this abuse, to take from the rich for the 
benefit of the poor. But it would be foreign to my 
purpose to discuss in detail, or even to attempt to state 
all the forms which these theories assume in different 
countries, and under varying circumstances. They have 
made noise enough to be sufficiently well known. There 
is a feeling of indefinable alarm on the one hand, and of 
equally indefinable expectation on the other. Most of 
the schemes I have alluded to had their birth x)lace on 
the continent of Europe. They are not the natural 
growth of countries where the common law prevails. 
But their authors avail themselves of the freedom of 
speech and of the press which is accorded in those 
countries to attempt to propagate these ideas. Under 
whatever ingenious form they are ]produced, they all 
tend to the same results ; to invade the right of private 
property as heretofore secured, and to take by law from 
one man, in order to give to another ; to enable one 
set of men to get something from another, without 
giving anything in return. When established principles 
are attacked, a nev/ vocabulary is always invented, not 
to convey, but to conceal the meaning of its authors. 
When strijDped of verbiage, and pursued to exact results, 
the conclusion I have stated is that at which all such 



12 

proposals arrive. And wherever and whenever they are 
bronght forward, they are accomx-)aniedb3^what, indeed, 
is their necessary concomitant, an effort to enforce them 
by creating political parties, formed upon class lines, 
and by stimulating the poor to organize against the rich. 

SOCIAL LEGISLATIVE IMPr.OVEMEXTS. 

When we regard the extent to Avhich poverty, misfor- 
tune and distress prevail, under the best conditions that 
can be devised for their relief, it is impossible to refuse 
attention and sympathy to any scheme of social or 
legislative improvement which promises to lighten their 
burden. I am far from intending to say that nothing 
can be done in this direction by wise and judicious 
legishition. Much, indeed, has already been done, and 
it is but fair to hope that more will yet be effected. 
Upon this point I especially desire not to be misunder- 
stood. I am dealing with the right of property. I am 
not justifying its abuse. The fundamental law that 
secures its title does not place the ov/ner of it beyond the 
power of legislation, in many particulars connected with 
its use and its disposition, in respect to which society has 
its just claims. The law of the land does not contem- 
plate its subject as an isolated individual, having per- 
sonal rights that carry no corresponding obligations. 
He is but one member of the great commonv/ealth, in 
which all its people are entitled to equal consideration 
with himself. Up to a certain point restrictions and 
limitations touching the right of ];)roperty are not only 
allowable but necessary. It may undoubtedly be dealt 
with, in respect to the form it assumes, as well as the 
manner in which it is enjoyed, when such regulation is 
necessary to the common interest. That individual or 
corporate prox)erty may be taken by government, when 
the public necessity requires it, if just compensation is 
made for it, is one of the conditions upon which it is 
held and lorotected. In the United States Constitution 



13 

tliis condition is expressly declared. Sucli a xiroceed- 
ing is not a dei3rivation of propert}^, but is only turning 
it into moneys Wliat constitutes public necessity is a 
question of grave importance, the decision of wliicli 
may vary very widely in different countries and under 
different circumstances. 

But to regulate property for the general good is one 
thing, to take it way is another. The fatal objection to 
the schemes I have referred to is that they strike at its 
title, not at its form or its use. Under color, and 
doubtless sometimes with the real hoioe of bringing 
about an apparent justice — attractive in theory, impos- 
sible in fact — they all attempt, under whatever disguise, 
what in plain English amounts to this, to beneiit one 
part of the community by the robbery of another. Such 
theories transgress the scope and p)rovince of law. 
When the efficacy of law is exhausted a large field of 
human conduct still remains, over which sound policy, 
enlightened morality and the precepts of Christianity 
exercise the only control that is possible. Invasion of 
the rights of property defeats also the equality of the 
law. Equality of rights is ordained of God. Inequality 
of condition is equally ordained. The one may be tem- 
porarily broken down, the other can never be overcome. 
It has pleased Providence to accord to but few the ca- 
pacity to accumulate or to preserve property to any 
great extent. It is a beneficent provision that the mass 
of mankind must live by their industry. It is a 
blessing and not a curse that b}^ the sweat of the brow 
we shall eat bread. It would be an unhajppy world if 
amusement were the sole emj)loyment of its inhabitants. 
Inequality of acquisition always has been and always 
must be great under whatever conditions of government. 
The principle of law, therefore, wdiich secures to every 
man his own, while it maintains equal rights, cannot 
prevent most unequal results. There is always to be 
seen, on the one hand, distress we should gladly alle- 



14 

viate ; on the other, examples of excessive accumula- 
tion, of legal rights pushed to a hard extremity, of 
wealth uncharitably and unwisely applied, which, in 
the individual cases, we could wish were made impos- 
sible. The same result attends the observance of the 
other principal rights secured by the law of the land. 
There are those in every community whose death or 
whose perpetual imprisonment would be a gain to 
society. But equal protection must nevertheless be 
afforded to their lives and liberty that is accorded to 
the benefactor of his race. When the barrier of perfect 
security to the natural rights, to all men alike, is once 
removed, when these rights, or either of them, come to 
be held, not as absolute, but as subject in any degree 
whatever to the discretion of governmental power, there 
is no limit and no criterion that can be prescribed to 
that discretion. Oppression of the poor for the benefit 
of the rich is a form of tyranny that is promptly re- 
cognized and condemned. But it is not so easy for 
some to perceive that the oppression of the rich for the 
supposed benefit of the poor is equally in derogation of 
the principles of free government, and equally destruc- 
tive in the end. All such experiments at once result in 
a warfare of classes. And in such a conflict, if carried 
out, which ever party finally prevails, free government 
is lost. It is a grave error, therefore, to believe that 
invasion of the right of property is for the benefit of 
the poor. The result is precisely the reverse. Free 
government, wliile unquestionably the highest and best 
civil and social condition for all who live under it, is 
especially and above all to the advantage of the gen- 
eral mass of men. It is in itself the elevation of the 
common people and their emancipation from the tyranny 
of an oligarchy. Since the jDrinciples of civil and reli- 
gious liberty were established in England, the advance 
of civilization and prosperity has been greater than in 
all the history that had gone before. The improvement 



15 

in the condition of tlie body of tlio people in all respects 
has been steady and rapid. When free government is 
lost by being allowed to degenerate into class govern- 
ment the strong are likely to take care of themselves. 
It is the weak who suffer. The wealthy may be made 
the first and most conspicuous sufferers. But they will 
be by no means the principal victims in the ultimate 
catastrophe. Liberty is not the privilege of the strong, 
it is the protection of the weak. Nor is it the rich who 
are chiefly interested in the maintenance of the right of 
property. The less a man has, if he has anything, the 
more important it is to him that it should be safe. ISTo 
property can be safe when once the general security 
that protects all alike is lost. It is a delusion to imagine 
that it can be impaired to a certain extent and main- 
tained for the residue, that it may be made the subject 
of a discriminating protection on the lines of moral 
justice, at the will of the governing power. There can 
be no middle ground. Either the title to lawful pro- 
perty must be universally protected, or it cea&es to be 
protected at all. That it is not the few, but the many, 
who are most largely benefited by the protection of the 
right of property has been strikingly demonstrated in 
the history of the United States. Under the American 
Constitution extraordinary safeguards have been de- 
vised, which have thus far rendered that protection 
absolute and certain. The result has been the most 
general distribution of property and the largest individ- 
ual prosperity that have ever been known in civilized 
life. The glory of America has been well said to be in 
the homes of its people. Millions of those homes, the 
property of their occupants, held in a security of tenure 
hitherto unquestionable, stretch across the continent 
from sea to sea. It is true that under the same equal 
protection the millionare enjoys and increases his accu- 
mulations, sometimes ill gotten, sometimes ill spent. 
But to assail him by impairing the general security to 



16 

property tliat tlie Constitution affords would be like 
trying to stay the rain from heaven because it falls upon 
the unjust as well as upon the just. Or like imi:)ugning 
the beneficence of the Almighty, because, under its im- 
partial rule, the wicked man still nourishes in his time. 

AN AMEEICAN ILLUSTRATION. 

In the Constitution of the United States the political 
system of Great Britain has been largely followed. 
Nearly all the great features which give it character are 
substantially adopted, except that of an hereditary Ex- 
ecutive and an hereditary Upper House. But in the pro- 
vision made for the security of personal rights against 
interference by the government exists a difference be- 
tween the two sj'stems less conspicuous, but really far 
more material than any other. The American Constitu- 
tion declares that " no man shall be deprived of life, 
liberty or property without due process of law." And 
that " no State shall pass any law impairing the obliga- 
tion of contracts." The words " due process of law " 
have been held, both in England and America, to be 
precisely equivalent in their significance to the phrase in 
Magna Charta, " the law of the land." The provision is 
the same under both sj'stems ; the difference is in the 
manner of its enforcement. Under the British Constitu- 
tion Parliament is supreme, and although bound to 
respect and maintain the personal rights, is its own 
judge at all times of what constitutes their infringe- 
ment. The American Congress and the Leo:islature of 
the States are equally bound to observe constitutional 
limits in legislation, and to pass no law that would in any 
respect infringe them. But if by any misajoprehension 
of what those limits require, or the pressure of any 
party or j)olitical excitement legislation should take 
]Dlace v/hich violates constitutional provisions, the courts 
of the country, and, in the last resort, the Supreme 
Court of the United States, which is the highest of all, 



17 

afford protection and redress against sucli legislation to 
any person who may be affected by it. An act passed 
in contravention of this or any other constitntional 
safeguard is held to be void, and constitutes no justifica- 
tion to the officer who attempts to enforce it. The con- 
sequence is that not only life and liberty, but property, 
individual or corporate, in every form in which it can 
lawfully exist in the United States, have been made 
doubly secure against invasion under any form or pre- 
tence of governmental authority not warranted by the 
law of the land. First, by the obligation resting upon 
the legislative power, not to transcend constitutional 
boundaries; and secondly, by the authority in the 
courts of justice, if these limits are exceeded by legis- 
lation or by executive act, to afford a complete relief. 

THE BEITISn coisrsTiTUTioisr. 

But in thus pointing out the success v/hich has thus 
far attended in America the system of judicial protection 
of constitutional rights, I am not to be understood as 
claiming for it a superiority over that which prevails in 
Great Britain. Political institutions, to be successful, 
must be the fruit of a natural growth, dictated and 
guided by necessity. They never can be arbitrarily im- 
posed or created full grown. They come with time and 
adapt themselves to the soil upon which they arise. 
That a system has been successful in one country is but 
an indifferent argument in favor of an attempt to en- 
graft it upon another. Transfusion of blood is a 
questionable expedient, and the indigenous tree flour- 
ishes where the exotic perishes. I have referred to 
the American experiment in this feature of government 
rather as an illustration than as an example. It certainly 
has the advantage of removing from the sphere of 
political controversy and from the action of popular 
caprice, and of placing under the uniform and per- 
manent rules of jurisprudence the preservation of those 



18 

fundamental personal rights whicli nncler all political 
changes and chances remain the same. American ex- 
perience has thus far shown that the assumption of 
arbitrary poAver by the Executive has not proved the 
danger to free institutions which theories anticipated. 
The concentration of power has tended steadily towards 
the legislative branch of the government. It is from 
that branch, not from the Executive, that protection 
has been principally found necessary. What might 
have occurred in that country in some periods of its 
short history, if the constitutional restriction I have 
quoted had not existed, is only a subject of speculation. 
The frequency with which it has been invoked has de- 
monstrated its importance. 

TnE IMPORTANCE OF PUBLIC SENTIMENT. 

But no system, however elaborate, and no contri- 
vance, however ingenious, can be finally effectual for 
the preservation of personal liberty without the constant 
assistance of an enlightened, healthy and vigorous pub- 
lic sentiment. Law, however fundamental, is but the 
reflex of public opinion, and in the long run in a free 
country must be maintained by that oj)inion or must 
perish. Constitutions, however guarded, cannot pro- 
vide for their own immortality. The principles of civil 
liberty had their origin in the convictions of mankind, 
and have been nurtured into perfection by the devotion 
of the race in which they started. Under them the 
Anglo-Saxon people has become what it is, and by that 
people they have been made what they are. It is a 
hackneyed saying, but hackneyed because it is con- 
stantly true, that "eternal vigilance is the price of 
liberty." But vigilance, to be of any avail, must be 
intelligent as well as active. From whom is it required ? 
From whom is it to be reasonably expected ? Who are 
the true and natural guardians of the law of the land ? 
Manifestly those who are best qualified to understand 
it, and best capable of patriotic and disinterested con- 



19 

duct. It was tlie barons of England wlio obtained 
Magna Charta. It has been tlie best life of Great 
Britain that from century to century, from generation 
to generation, in many a crisis, by many a victory, not 
less of iDeace than of war, has maintained inviolate its 
great principles. No demagogue, no self-seeker, no 
man who "follows for a reward," has ever struck an 
effectual blow for liberty, or has advanced the cause of 
human freedom a single step. The name of liberty is 
always in the mouths of such men, but they are its ene- 
mies, not its friends. They have retarded and disgraced 
it, but they have never done it any good. They are 
only camp followers, not soldiers, in the great march 
destined, we hope, to overcome the world. Liberty, 
everywhere and alv/ays, has been maintained by the 
best class of its subjects. I use the term in no conven- 
tional sense. I understand the best class to be that 
which is composed of the best people. They may be 
found in the peerage ; they may rise from humble life ; 
their distinction is in quality, not in rank. It was the 
best class of Americans who took up the great quarrel 
on the far side of the Atlantic, carried through the 
American Revolution, ordained and set fast the Consti- 
tution of the United States, and have upheld it ever 
since. It is in that class everywhere, in all countries, 
under all free systems of government, that the laws of 
the land, which is liberty, must find its defenders. Not 
only against its enemies, but against being wounded in 
the house of its friends. Friends too ignorant some- 
times to perceive that a blow aimed at the head is 
equally a blow at the heart ; that liberty is equality of 
rights which no man is too high and no man too low 
to share in, and that when that equality is invaded, 
from whatever specious motive or upon whatever 
promise of temporary advantage, liberty comes to an 
end, and the old story of^the strong against the weak, 
of which the world was' so long weary, begins to be 



20 

rehearsed again. AVhat free government sliould do in 
the multiform exigencies and emergencies of national 
life, is often a, grave question. Whether free govern- 
ment should continue to exist can never be a question 
in the British or American mind. 

DAA^GER OF CLASS LEGISLATIONS'. 

Nothing likely to occur at this day in any such gov- 
ernment is so much to be dreaded and so necessary to be 
resisted as movements like those I have referred to 
towards the organization of parties upon class lines, and 
the marshalling of one class to make Avar upon another. 
Political parties hitherto have been composed of all 
classes. Divisions have been upon the lines of opinion, 
and not upon those of condition. It is only recently that 
these movements have been seriously set on foot in va- 
rious directions, and especially in America. If started 
in one free country they endanger all. I have tried to 
IDoint out how dangerous to free government such a war- 
fare must be if allowed to go on to its legitimate conclu- 
sion. It is not merely the fortune of the conflict that is to 
be feared, it is the conflict itself. It is the shortest and 
most direct road to the resumption of the reign of arbi- 
trary iDower. The man who inaugurates or encourages 
such a warfare is a greater, because a more efllcient 
enemy to liberty, than if he attempted to set up the 
worst form of despotism with which humanity was ever 
afiiicted. It needs to be brought home clearly to those 
to whom ignorance and distress make such j^roposals 
attractive, how^ cruel is the wrong to themselves that the 
success of them would bring to pass. How inevitably 
they must be the sufferers, when the hands of one class 
are thus turned against another, and what should be a 
community of interest is divided against itself. How 
certainly such schemes paralyze the industries and 
business upon which all self-supporting men depend. 
They are callable of understanding this, if it is set before 



21 

them in the right way. But the adjuration against a 
conflict of classes does not address itself, as too many 
seem to suppose, to the less fortunate class alone. It 
appeals to them, undoubtedly ; but it appeals with 
greater force to the higher and better educated order in 
society. To avert an impending war, concessions from 
both sides are generally necessary. But they come, in 
the first instance, with abetter grace and a stronger force 
from the side that can best afford them. It is easier, 
sometimes, to disarm the demagogue by mitigating the 
grievances that make up his material, than it is to refute 
him before the audiences where he has sway. The 
common law has its letter, as well as its spirit. The one 
gives, as we have seen, an absolute protection to absolute 
rights. The other teaches, that such protection is a 
weapon of defence, not of aggression ; most effective 
when used with forbearance and moderation. It is not 
always necessary or wise to push even just claims to 
their extremity. 

A HOPEFUL OUTLOOK. 

The gradual but steady improvement of the general 
mass of mankind in intelligence, in self-respect, in social 
refinements and in the capacity to enjoy them, is the 
natural outgrowth of civil liberty, and of that law of the 
land which starts from the recognition of equal rights. 
It follows in the footsteps of free government wherever 
it goes. Its tendency must be accepted as one of the 
great forces of the time, and at the same time one of 
the most signal blessings to mankind that freedom has 
conferred. It is not for us to say how much may come 
of it hereafter. It is but natural, that with this elevation 
of the humbler order, should come a desire, not always 
well directed, but with which a right mind can never fail 
to symi3athize, for better jDrivileges and surroundings, 
more advantageous conditions, and a better chance in the 
race of life. It is but just, as well as politic, that this 



22 

desire should be met and helped forward in all reasonable 
ways, and it is for the best interests of humanity that it 
should be. Doubtless something should be done towards 
such a i)rogress by enactments, considerate and thought- 
ful, not shooting arrows into the sky to fall we know not 
where. But far more can be effected, as it appears to me, 
by the cultivation of a general sjDirit of conciliation, of 
kindness and of fraternity, which should unite all honest 
men, of whatever class, in the bonds of a common sym- 
pathy and a common hope. The right hand of fellowship 
is the best offering, after all, that man can make to his 
neighbor. 

It is idle to expect Utopian results. The varying lot 
of humanity can never be equalized. The poor will be 
always with us. But perhaps, in the ripening fruits of that 
larger j)hilanthropy, that broader and more generous 
brotherhood which, taking account of human frailty and 
human sorrow, shall try to lessen the inequalities of life 
by raising from below, not by pulling down from above, 
to obliterate, in some measure, those distinctions that 
do not mark a difference, and to strengthen the security 
of rights by diminishing the temptation to attack them, 
may yet be seen — I cannot believe it visionary to think 
so — not the least beneficent of the gracious harvests that 
have been generated upon the land by the law of the 
land. 



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